England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		6th May 2005

1. MR JUSTICE MITTING: On a date unknown to us in 2003 informations were laid at Dartford Magistrates' Court alleging that the applicant had committed three motoring offences on 1st December 2002: careless driving, failing to provide a specimen of breath and failing to stop after an accident which had occurred in Gravesend. The charges arose out of a road traffic accident. The prosecution alleged that the claimant was the driver of the car involved, a Subaru GNO2 UMM.
2. On 26th November 2003 the case was adjourned, by agreement of all parties, to be tried on Monday 1st March 2004. On Friday 27th February 2004 the prosecution applied to the justices for an adjournment. The ground was that two witnesses upon whom they intended to rely were unavailable on 1st March: Jacqueline Bulman, the Claims Superintendent at NFU Mutual, the claimant's insurers, and PC Trevor Hall. Miss Bulman was to be called to produce and prove documents received or created during the course of her employer's business: first, an e-mail from the RAC giving details of a claim by the claimant for the cost of repairs to his car arising out of an accident on 1st December 2002; secondly, a letter from the NFU to the claimant stating that he was the driver of the car at the time of the accident and inviting him to confirm that details were correct or to correct any inaccuracy; third, a report from Collins Associates detailing the damage and repairs to the claimant's car; fourth, a letter to a police officer in the Kent Constabulary, identifying an account into which £6,978.01 was paid by NFU in settlement of the claimant's claim. PC Hall simply proved the receipt and transmission of the documents to the Kent police.
3. The justices refused the application for an adjournment. There is no record of their reasons for doing so.
4. Both witnesses were unavailable on 1st March: Miss Bulman was attending a business conference and PC Hall was on holiday. On 1st March the prosecution repeated its application for an adjournment to a new bench of justices, relying on the same grounds as they had done on 27th February. The justices allowed the application. Again, there is no record of their reasons for doing so.
5. Proper practice in these circumstances is straightforward and was clearly set out by Laws LJ in R v Acton Youth Court ex parte Director of Public Prosecutions in a decision of this court on 10th May 2000:

"It is necessary for the efficacious administration of justice to take a strict approach to the power of a lower court to revisit and revoke an order earlier made by itself. Clearly there must be some power to do so in the interests of justice. It arises, as my Lord has indicated, where there is a change of circumstances. Plainly that must be a change of relevant circumstances."

There was no change of circumstances. The justices, applying that clear principle, should therefore have refused the prosecution application.

6. Mr Hall submits to us that we should nonetheless refuse this application on the ground that it is premature. He relies on the observations of Lord Widgery CJ in R v Rochford Justices ex parte Buck [1978] 68 Cr App R 114, to this effect:

"The obligation of this Court to keep out of the way until the magistrate has finished his determination seems to me to be a principle properly to be applied both to summary trial and to committal proceedings."

7. I accept that that is the normal rule, but in this, as in some other cases, the prosecution would no doubt say at the conclusion of a trial resulting in a conviction that it was too late for the claimant to complain about an adjournment that should not have been granted before. In a case such as this, where the issue is straightforward and the principle clear, I do not see that there is any fetter on this court intervening.
8. Thus far, in my view, this application is straightforward. Consideration of the relief claimed is not. It is:

"An order of prohibition, prohibiting the interested party from adducing at the trial of the claimant any evidence which they would not have been in a position to adduce on 1st March, if the claimant's trial had gone ahead on that day."

9. That formulation of the relief sought creates two problems. First, it begs the question of what evidence the prosecution would have been able to adduce had the trial gone ahead and, secondly, since 4th April 2005 the law governing the admission of evidence of business documents has changed: the Criminal Justice Act 1988 sections 24 and 27 have been replaced by the Criminal Justice Act 2003 sections 117 and 134.
10. Without the oral evidence of the two witnesses, the prosecution could have adduced the documents produced by Miss Bulman simply by producing them "authorised in such manner as the court may approve" or a copy similarly authorised (section 27 of the 1988 Act).
11. The authenticity of the documents is not clearly in dispute; the position is simply that Mr Ley, for the claimant, is not able to say whether he accepts them or not. Given the description of them in Miss Bulman's statement, it seems highly unlikely that their authenticity could in fact have been challenged. The justices could accordingly have approved their authenticity in any manner that it may approve, including reading the written statement of Miss Bulman. There is no requirement in law that the justices, when considering how a business document should be approved, should apply the strict rules of evidence governing oral evidence. It is unnecessary for that purpose that the witness statement of the person authenticating documents should be accepted under section 9 of the Criminal Justice Act 1967 by the defence. The evidence upon which the prosecution wished to rely could therefore have been adduced by that means. It can now be adduced under sections 117 and 134 of the 2003 Act.
12. As to the evidence of PC Hall, the prosecution never needed it at all. This is not a case in which business documents were going to be subjected to forensic analysis so that transmission of them was required to be proved. All that PC Hall did was to prove an unnecessary link in a chain of transmission from the NFU to the CPS. If it was thought necessary to establish that chain for the purpose of the magistrates' approval under section 27, then again the magistrates could, as in the case of Miss Bulman, have relied on the written statement of PC Hall and could still do so.
13. The extent, therefore, to which the prosecution evidence would have been limited if the case had gone ahead is itself very limited. The prosecution would not have been able to rely upon the oral evidence of Miss Bulman or the oral evidence of PC Hall.
14. To that extent the claimant has been placed in a position less favourable than he would have been placed if the adjournment, which should have been refused, was refused. To preserve the limited advantage to which he is entitled, in my view, the order that he seeks should be limited to a prohibition upon the prosecution adducing the oral evidence of Miss Bulman and PC Hall, but not to any other extent. To order any further restriction would, in my view, unjustly fetter the prosecution. Further, to require the magistrates to apply rules of evidence which applied in March 2004 when they have now been repealed would be contrary to principle. The justices should consider the case in the light of the observations made and apply the law as it is laid down in the 2003 Criminal Justice Act.
15. To that extent, and to that extent only, I would allow this application.
16. LORD JUSTICE SEDLEY: I agree.
17. MR HALL: My Lord, is the prohibition upon adducing the oral evidence of the named witnesses Bulman and Hall or the oral evidence that should have been available then? I am unsure whether I am given the opportunity to have a substitute for Miss Bulman in the circumstances if the prosecutor wants it.
18. MR JUSTICE MITTING: I meant what I said, namely the evidence of Miss Bulman and PC Hall.
(The bench conferred for a short time)
19. LORD JUSTICE SEDLEY: The decision is as given by my Lord, and that is that neither PC Hall nor Miss Bulman may give oral evidence on resumption. We are not in a position to know for certain what other oral evidence might have been available, but of course there will have been questions of notice and service.
20. MR HALL: Yes.
21. LORD JUSTICE SEDLEY: All of which you will have to take on board.
22. MR HALL: Of course. Thank you.
23. LORD JUSTICE SEDLEY: What I would ask the parties to do, because I think there should be a speaking order of this court which tells the justices in terms how they are to proceed, is, if you would please, to draw up an agreed memorandum of this court's decision and provide it to the associate so that there is a single version of what it is that we are directing. If there is any residual problem, then the associate will bring it to us.
24. MR LEY: My Lord, are you saying that they then can call any other witness except for --
25. LORD JUSTICE SEDLEY: We have said that they may not call Hall or Bulman.
26. MR LEY: Or evidence to like effect, my Lord?
27. LORD JUSTICE SEDLEY: No, we have not said that, Mr Ley. I think you have to appreciate that you have taken a line of defence, which you are entitled to take, which is a technical line of defence, and that is the reason why the court's order takes the limited form it does.
28. MR LEY: My Lord, so far as the order on hearsay evidence goes, would it be suitable to say the justices to apply the law as in force -- the future date of the trial.
29. LORD JUSTICE SEDLEY: That is the effect.
30. MR LEY: So if we could say that --
31. LORD JUSTICE SEDLEY: The law rules of evidence to be applied are those in force at the date of resumption.
32. MR LEY: I am much obliged to your Lordships.
33. LORD JUSTICE SEDLEY: Thank you very much.
34. MR LEY: My Lord, I would seek costs out of central funds because my client has succeeded in obtaining -- well, first of all, the Crown brought it on themselves but, secondly, I would ask for a defendant's costs order, my Lord.
35. LORD JUSTICE SEDLEY: Costs out of central funds.
36. MR LEY: I am much obliged to your Lordships.
37. LORD JUSTICE SEDLEY: Thank you for your help.